Friday, May 16, 2014

Where Mistakes Are Almost Never Made

Paul Kennedy refers to it as "the (in)justice system." Which pretty well makes the point.But he's like me. Just a simple little blawgger. Read, I suspect, mostly by folks who already agree with us about these things. So for most of the other blawggers I encourage people to read. They write well and honestly about things that people should hear. They think carefully. They have things to teach even to those who generally get it. You can learn from them. I do. Still, when they we talk about false confessions or the evisceration of the 4th Amendment or some innocent person being killed by the police for not understanding English or how the court just rode roughshod over the law to ensure that some poor sod can continue to get fucked or . . . .For the most part, we're preaching to the choir. Of course, some have a bigger choir than others, but the point remains. What's really necessary is to reach beyond.So, on Sunday night, turn on your TV and tune it to Al Jazeera America for the first episode of The System with Joe Berlinger.* Berlinger's the guy who made Paradise Lost: The Child Murders at Robin Hood Hills. This time he's taken on not just one case but the whole shebang. He told Capital New York

Having made a number of films about the justice system, I have become aware of problems, so we started with that. What are the issues? Paradise Lost involved a false confession, and in my opinion some alleged prosecutorial misconduct. So I wanted to use the series to look at those issues at a systemic level. How do we get wrongful convictions? Or misapplication of justice? It is not just a wrongful conviction series, it is about the misapplication of justice. We spoke to experts, and I have my own set of knowledge. Instead of just focusing on a case and what the problems were, i wanted to to focus on an issue and find cases around the issue.

The System isn't a single documentary, it's a series of 8 to be shown once a week each on a different topic, each focusing on, it seems, two specific cases. Berlinger talks to the folks who were convicted, to their devastated families, to their lawyers, to reporters who covered the cases, to investigators. He talks to law enforcement and (if they'll let him) prosecutors. And he talks to the families of victims who typically remain convinced, regardless of evidence to the contrary, that the cops nailed the right person. It is as restrained and calm and quiet as can be. Narrated by and with the regular presence on camera of Berlinger himself. Scraggly beard. Soft spoken. Restrained. And all the more damning for that.The first episode, "False Confessions," looks at the case of Kirstin “Blaise” Lobato from Las Vegas. She was convicted of the rape and murder of a homeless man based largely on her supposed confession. Except it seems she wasn't. It appears, instead, that what they took to be a confession was in fact a description of her own rape a month earlier on the other side of the city. They might be able to find out what really happened if the prosecutor would just test the fucking DNA. Though if they did, it might turn out that . . . . The other story in that episode is Jeff Deskovic's. I've mentioned him here a couple of times before, and a few years ago I had the pleasure of having a drink with him at a celebration when Illinois repealed its death penalty law. (He probably doesn't remember me.) Jeff was in high school when he confessed to raping and murdering a classmate. That confession led to 16 years in prison. In his case, they did finally test the DNA. Which wasn't his. Cause he didn't do it.It's powerful stuff. The second show, about Mandatory Minimums, is less successful. Again it looks at individual cases. Orville Lee Wollard is spending 20 years in a Florida prison because he fired a warning shot - inside his own house - into the wall. Didn't hurt anyone. Scared the guy who was preparing to attack his daughter. Let's run that down again. Inside his own home. Warning shot into the wall. Hurt nobody. 20 years. On the other hand, if the guy who shot and killed 16-year-old Hadiya Pendleton in Chicago had gotten a 20 year sentence for his earlier gun offense he'd have been in prison and Hadiya would likely still be alive. The contrast isn't really fair. The problem in Chicago isn't that Hadiya's killer didn't get a mandatory minimum. Oh, a longer sentence in that case (or the other case in Chicago Berlinger presents) might have prevented that particular shooting. But criminal laws and penalties built on individual tragedies pretty much always have severe and deeply troubling unintended consequences. In any event, the Florida and Chicago cases aren't really comparable. And frankly, the most serious problems with mandatory minimums aren't in gun cases but in drug cases. And then there's Flawed Forensics. In this instance, it's hair comparisons that sent John Huffington to prison in Baltimore for 30 some years and Willie Manning to death row in Mississippi. The bullshit comparisons were done by the FBI. As were thousands of others. And countless more by state criminalists trained incompetently by the FBI. DNA in Huffington's case showed that hair wasn't his. He's out now, awaiting retrial (there is that messy fingerprint still to deal with). Mississippi doesn't want to do DNA testing. Manning's execution was called off with just a few hours to go when the FBI sent out word that it's false testimony led to his conviction. But he's still on the row. And Mississippi won't allow the DNA testing because . . . you know.And there are the victims' families. Who insist, bullshit hair comparisons and DNA exclusions be damned. Willie Manning should be executed. Today. John Huffington should be back in prison and never again see the light of day.Of course, we know that hair comparison is the least of it. Fingerprints, bite marks, breathalyzers, even when the science is good (it mostly isn't) its subject to human error and dishonesty. There are the pathologists who don't cut open the bodies. The drug analysts who don't bother actually analyzing the drugs. And then there's the FBI. It's lab's problems are by now well known. They have been since Fred Whitehurst blew the whistle, got forced out, sued and won 1.16 million dollars. And, again, it's their lab that did the hair comparisons that provided the key evidence that got Manning and Huffington convicted.If there's a story to The System it's that the system ain't all it's cracked up to be. Those of us who deal with it every day know that. So do it's victims. Other people need to know it, too.Fred Whitehurst, on camera near then end of the Flawed Forensics episode makes the point.

We need systems that we trust. But we don't need to trust them blindly.

There's a pretty good case to be made that we can't fairly trust them at all. Joe Berlinger's making a pretty good start at getting the word out.-----------------------*My thanks to the publicists at Al Jazeera America who sent me screeners of the first three episodes.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.